Synopsis

Pro se claimant inmate who fell down the steps at Coxsackie Correctional Facility and sustained
injuries, sought damages from the state for failing to provide him a flat pass and for assigning
him to a third floor cell. Claimant had previously undergone a hip replacement and experienced
pain in his back and knee. After a video trial, the court found defendant not liable and dismissed
the claim, reasoning that cell assignments are discretionary, and to the extent there was medical
judgment involved, claimant failed to present expert testimony.

Decision

Claimant filed a pro se claim seeking damages for injuries he sustained falling down the
stairs at Coxsackie Correctional Facility ("Coxsackie") on February 25, 2015. The claim alleges
that claimant's fall resulted from defendant's negligence in assigning him to the third floor of the
facility knowing he had previously undergone a hip replacement, was in pain, and was
experiencing difficulty using stairs. The claim also alleges that after the accident, claimant
continued to experience pain and difficulty resulting from defendant's placing him on the second
floor and requiring him to attend school on the third floor, even after the Medical Department
gave him a "flats pass" (first floor cell assignment) on March 2, 2015. A video trial was held on
March 15, 2018.

Claimant testified that when he was transferred from Downstate Correctional Facility
("Downstate"), he told the staff at Coxsackie medical intake that he was impaired and on
medication due to a hip replacement and bad knees. Dr. Miller did not do a medical card
directing that claimant be placed in a "flat" location, and claimant was placed in a third floor cell.
He was in pain on February 21, 2015, and put in a sick call slip that was ignored. He submitted a
grievance on February 22, 2015, then went to sick call on February 24 and requested a flat
placement, which was ignored. On February 25 he was walking up the steps when he missed the
railing and fell down the steps, rendering him unconscious. He was sent to the hospital, given a
neck brace and kept in the infirmary at Coxsackie for seven days. Claimant was unable to walk.
He had bone chips in his leg. He was treated with medication and physical therapy.

On cross-examination, claimant testified that his hip was replaced in late 2011, early
2012. He transferred to Coxsackie on July 21, 2014. He believes the medical department should
have given him a flat permit. His program assignments (Exh. A) before February 25, 2015,
included working as a porter, and in maintenance, heating and plumbing. His assignments after
February 25 included working as a porter and an administrative runner. The notation "no show
for a.m. sick call" appears on his ambulatory health records for February 17 and 23, 2015, and
other dates, because the nurse "ignored" him (Exh. B). He disputed the notation on his health
record for September 11, 2015 that he "was seen playing handball" in the yard.

On redirect examination, claimant testified that they assign you to a work program but do
not call you to show up.

Claimant's Exhibit 1 is comprised of his medical records. A health screening sheet
showing his intake at Coxsackie on July 21, 2014 contains claimant's response "hip replacement
2013" to the question "Do you have a current health problem or complaint?" Another health
screening sheet contains the response "Pain meds not effective" to the same question. A similar
sheet filled out at Downstate on June 30, 2014, in the "general health" section, refers to "hip
replacement 2012," "arthritis" and a knee brace. Notations throughout his records refer to
complaints of pain in hip and knee, then back after his fall, requests for stronger medication, and
intermittent provision of certain medical equipment, such as a knee sleeve, a neck collar and a
back brace. He received several evaluations of his back, with CT scans and X-rays, finding
normal spine alignment and a minimal degenerative condition, and recommending no action. A
form used in the Coxsackie infirmary showing claimant's admission on February 25, 2015 and
discharge on February 27, contains the notation, "Lock on Flats 3/2."

Claimant's Exhibit 2 is comprised of a one-page grievance decision and a one-page
memorandum to IGRC from "V. Baldwin, NA1," which provide the following observations and
conclusions: When claimant was at Downstate Reception he "locked on the 2nd and 3rd floor";
there was "no entry in his medical record that he told medical at Downstate or Coxsackie CF that
he was experiencing difficulties navigating stairs"; while at sick call on February 24, claimant
requested a flats pass because of right knee pain; the nurse "made sure [claimant] was in to see a
doctor for a flats pass evaluation"; claimant reported sending Deputy Smith a letter on February
22 requesting a move from his C3 cell due to physical limitations; Deputy Smith did not receive
the letter until after February 24; "AMCH" evaluated claimant on the day of the accident then
gave him a CT scan and X-rays, but found no injuries; claimant was seen by his provider on
February 27, March 10 and May 12, 2015, and by orthopedics on March 25; claimant received
about 31 physical therapy sessions; claimant said he was having difficulty getting to the mess hall
and programs, but he showed "no problem ambulating to sick call, which is farther than either
the mess hall or the program areas"; claimant's grievance was filed on March 23, 2015, and
denied after a hearing on June 3, 2015.

Claimant's Exhibit 4 is a single sheet showing copies of six medication cards and two
equipment permits - medicine cards providing for "Lock on flats," "Knee sleeve," and "White
back support brace" from March 2 to September 2, 2015, and "Soft neck collar" from March 3 to
May 3, 2015.(1)

At the conclusion of claimant's case, defendant made a motion to dismiss for failure to
establish a prima facie case, which the court reserved decision.

Lisa Mazza testified that she has been a registered nurse since 1996. Nurse Mazza works
at Coxsackie as the Nurse Administrator over primary care. She supervises the staff and is
familiar with the process for issuing flats passes, which must be originated by a P.A. Flats passes
are for inmates who cannot do stairs because of permanent or temporary disabilities. They can be
renewed by a nurse. Before claimant's accident, "Medical" at Coxsackie determined that a flats
pass was not warranted. Claimant often requested more potent pain medications.(2)

On cross-examination, Nurse Mazza testified that an inmate with a permanent disability
would be transferred to a flat facility. An inmate with a temporary disability would be
accommodated. She would not have necessarily issued claimant a flats pass for his condition.

Exhibit A shows claimant's work assignments as a runner and to shop, maintenance,
heating and plumbing. Exhibit B is comprised of claimant's ambulatory health records, as
discussed above in the summary of Exhibit 1. Exhibit C contains an orthopedic report dated
October 23, 2015 recommending a cane and limiting stairs, and noting claimant remains "w/sig
pain [going up and down] stairs."

Before assessing whether claimant established a prima facie case, the court must first
determine the controlling standard of liability. Claimant asserts that defendant was negligent in
assigning him to a third floor cell when the staff at Coxsackie knew or should have known that
he needed a flats pass because his physical problems made it difficult and painful for him to use
the stairs. Defendant asserts that cell assignment is an administrative determination that is not
reviewable in the Court of Claims, and that whether to issue a flats pass is a medical decision so
expert testimony was necessary to establish a prima facie case.

The law is settled that "the State owes a duty to provide for the health and care of
inmates" (Levin v State of New York, 32 AD3d 501 [2d Dept 2006]). "That duty does not,
however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the
State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable"
(Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296
NY 342 [1947]). "While matters related to inmate classification and housing are discretionary
determinations for which the State is immune from liability (see 9 NYCRR 7013.8), the State is
not immune from liability for deviations from established medical directives or protocols, which
may form the basis for a negligence claim" (Pitt v State of New York, UID No. 2015-015-073 [Ct
Cl, Collins, J., Aug. 24, 2015]; see Hunt v State of New York, 36 AD3d 511 [1st Dept 2007]; see
also Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]; Carlson v State of New York, 34
Misc 3d 242, 253 [Ct Cl 2011]).

The court has considered all the evidence, including a review of the exhibits and listening
to claimant's testimony, and observing his demeanor as he testified. The undisputed facts are as
follows: claimant had hip-replacement surgery in 2012; he "locked on" the second and third
floors at Downstate Reception; he transferred from Downstate to Coxsackie on July 21, 2014; on
intake, Coxsackie was notified of claimant's hip replacement, complaint of pain, and that he had
a knee brace; claimant was assigned to a third floor cell at Coxsackie, and received program
assignments as a runner, porter, and maintenance worker; on February 22, 2015, claimant sent a
letter requesting a flats pass to the deputy superintendent, who did not receive it until after
February 24; when claimant asked the nurse for a flats pass, the nurse arranged for claimant to be
evaluated by a doctor; there were no witnesses to claimant's fall; tests after his fall did not show
he sustained any significant injury and he was discharged from the hospital to return to
Coxsackie the same day; claimant intermittently complained of pain in his back and knee, and he
asked often for stronger pain medication.

Although the court believes that Mr. Taylor experiences pain and difficulties arising from
hip and back-related ailments, the court found him less than credible. Time and again his
testimony was contradicted by the records admitted as exhibits in support of his claim. He
testified that his request for a flats pass was "ignored," yet a copy of a medication card provides
for him to "Lock on Flats" from March 2 to September 2, 2015 (Exhibit 4). His only explanation
for work program assignments as a porter and runner was that he was not called to do the work,
and he simply denied the accuracy of a nurse's notation that he was seen playing handball in the
yard. There are also notations in his ambulatory health records that, contrary to his complaints, he
did not appear to have difficulties ambulating.

To the extent that claimant asserts negligence based on his cell assignment, claimant did
not plead ministerial neglect and did not present any evidence as to the facility's or DOCCS'
policies or rules for cell assignments. Based on the evidence that was presented, the decision to
assign claimant a third floor cell was discretionary. "[D]ecisions relating to the accommodation
of inmates, such as cell assignments, are the type of day-to-day judgments that rest firmly in the
discretion of prison officials" (Veney v Wyche, 293 F3d 726, 733 [4th Cir 2002], cited by
Crenshaw v Korbar, 2013 US Dist LEXIS 55121 [WDNY 2013]). Therefore, defendant is
immune from liability (see e.g. McLean v City of New York, 12 NY3d 194, 203 [2009]).

Although issuance of a flats pass concerns a cell assignment decision, there was some
evidence that the decision was based on medical judgment. It was uncontroverted that after
claimant requested a flats pass, the nurse arranged for him to have a medical evaluation, and
Nurse Mazza testified that the decision originated with a "PA." However, claimant failed to
present evidence that before his accident, any decision was made about whether to issue such a
pass to him or that defendant had a duty to issue one to him. In any event, proof of liability would
be based on proving medical malpractice, which requires expert medical testimony in order for a
claimant to meet the burden of proving that a defendant's alleged negligence constitutes a
deviation or departure from accepted practice (see Myers v State of New York, 46 AD3d 1030 [3d
Dept 2007]). "The distinction between ordinary negligence and malpractice turns on whether the
acts or omissions complained of involve a matter of medical science or art requiring special skills
not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be
assessed on the basis of the common everyday experience of the trier of the facts" (Miller v
Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Hale v State of New York, 53
AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]; see also Tolliver v State of New
York, UID No. 2013-040-081 [Ct Cl, McCarthy, J., Dec. 16, 2013]).

The evidence shows only that defendant knew or should have known that claimant had a
hip replacement, that he complained of pain in his back and his knee, and that he did not request
a different cell assignment or indicate that he had difficulty with the stairs. Even if he had
requested a flats pass, "[t]he Supreme Court has held that inmates are entitled to reasonable
treatment, not the specific treatment they desire" (Dobbin v Artuz, 143 F Supp 2d 292, 302
[SDNY 2001]). In the Dobbin case, the Southern District of New York found that a prisoner with
a herniated disk diagnosis and complaints of pain, who requested a ground floor cell, failed to
establish a medical need for the requested cell assignment. Finally, although claimant was on the
stairs because he was assigned to a third floor cell, there was no evidence that his fall was
proximately caused by defendant's failure to issue him a flats pass.

Accordingly, the court finds defendant not liable for negligence and dismisses Claim No.
126676. Defendant's motion to dismiss the claim is denied as moot. Let judgment be entered
accordingly.

April 27, 2018

White Plains, New York

STEPHEN J. MIGNANO

Judge of the Court of Claims

1. One card notes, "Metal in R hip" with the dates March 2, 2015 to September 2, 2015.

2. The Assistant Attorney General asked Nurse Mazza several questions calling for her opinions based on
claimant's medical tests. The witness was not offered or qualified as an expert and the court has not considered her
responses to these questions in its decision.